Helton v. Hake

• Decision Date: 06 December 1974
• Docket Number: No. 74-CV-59-C.,74-CV-59-C.
• Citation: 386 F. Supp. 1027
• Parties: Shirley HELTON et al., Plaintiffs, v. Ben HAKE et al., Defendants.
• Court: U.S. District Court — Western District of Missouri

386 F. Supp. 1027

Shirley HELTON et al., Plaintiffs, v. Ben HAKE et al., Defendants.

No. 74-CV-59-C.

United States District Court, W. D. Missouri, Central Division.

December 6, 1974.

Hendren & Andrae, Jefferson City, Mo., for plaintiffs.

Barry J. Levine, Lewis E. Mallott, St. Louis, Mo., for defendants.

Chas. Riley, Fulton, Mo., for Ironworkers.

MEMORANDUM AND ORDER REMANDING CAUSE TO THE CIRCUIT COURT FOR COLE COUNTY, MISSOURI

ELMO B. HUNTER, District Judge.

This cause was instituted by the filing of the petition for relief in the Circuit Court for Cole County, Missouri, on March 15, 1974. The petition for removal to this Court by certain of the defendants was filed on April 12, 1974. Plaintiffs have moved to remand this cause to the state courts, and the removing defendants oppose the motion. For the reasons set forth below, plaintiffs' motion will be sustained and the cause remanded.

Plaintiffs are the surviving spouse and minor children of one Norman R. Helton, now deceased. The defendant in Count I of the three count petition is the City of Salem, Missouri. Defendants in Counts II and III are various members and officers of the International Association of Bridge, Structural and Ornamental Iron Workers, A.F. of L.-C.I.O. and Local 396 of that international union, as representatives of an unincorporated association, pursuant to Rule 52.10 Mo.R.Civ.P., V.A.M.R.

The petition alleges that on or about September 11, 1973, Norman Helton died as the result of electrocution after coming into contact with a high tension power line owned and operated by the City of Salem, Missouri. At that time Mr. Helton is alleged to have been working on a construction project immediately adjacent to the power line.

Count I seeks damages from the City of Salem. This Count alleges that the city was negligent in failing to deenergize, isolate or insulate said power line and that therefore it is liable to plaintiffs in the sum of $50,000.

Count II seeks damages from the various members and officers of the union. The essence of this Count is contained in paragraphs 7, 8, and 9 of Count II. Those paragraphs state as follows:

"7. At all times mentioned herein, defendant Ben Hake was the job steward appointed by representatives of the international and the local on a certain construction project in Dent County near Salem, Missouri, and as such was the agent of the International and the Local on such project.

"8. In a collective bargaining agreement entered into on August 9, 1972, for the years 1972 through 1975, between the Associated General Contractors of St. Louis, Erectors and Riggers Association and Site Improvement Association on one hand and the Local, acting for itself and as agent of the International, on the other hand, it was provided that the job steward shall see that the provisions of the working rules are complied with, that among the working rules included in said agreement is the rule that no work shall be done in the immediate area of high tension lines until the power has been shut off, or the lines insulated, or the safety of the members of the bargaining unit otherwise provided for.

"9. Defendant Hake, while acting in his capacity as job steward and agent of the International and the Local, negligently and carelessly failed to enforce such rule, and Norman R. Helton, a dues-paying member of the bargaining unit covered by said agreement and for whose benefit said agreement was made, was required and permitted to work in the immediate area of high tension lines without the power being shut off, or the lines insulated, or the safety of Norman R. Helton being otherwise provided for."

Count II then further alleges that as a direct and proximate result of this negligence Norman R. Helton was electrocuted. Plaintiffs pray for $50,000 in damages on this Count.

Count III of the complaint repeats the allegations contained in Count II, and further states that as a result of the electrocution Norman Helton suffered loss of property in the amount of $50.00 and expended $110.00 in medical expenses. In this Count plaintiffs pray for that $160.00 actual damages and, in addition for $200,000 in punitive damages for defendants' alleged "complete indifference to or conscious disregard for the safety of" Norman Helton.

Under the provisions of 28 U.S.C. § 1441(b), any civil action of which the district courts of the United States have original jurisdiction founded upon a claim arising under the Constitution of or laws of the United States is removable to a district court from the state courts without regard to the citizenship or residence of the parties. On this basis, defendants in Counts II and III removed this action, stating that

"3. Counts II and III of plaintiffs' petition allege that Iron Workers Local 396 failed to fully and adequately enforce its collective bargaining agreement between the Associated General Contractors of St. Louis, Erectors and Riggers Association, and Site Improvement Association, such allegations being within the purview of and constituting a cause of action under Section 301(a) of the Labor Management Relations Act, as amended 1959, 29 U.S.C.A. Section 185(a).

"4. The District Courts of the United States have original jurisdiction of causes arising under Section 301(a) of the Labor Management Relations Act, as amended 1959, 29 U.S.C.A. Section 185(a)."

Plaintiffs' thereupon filed a motion to remand this cause to the state court. The position of plaintiffs on this question, in essence, is that the complaint herein does nothing more than state an action in tort for wrongful death under Missouri law, and hence does not fall within the original jurisdiction granted to the federal district court by Section 301. In their memorandum in opposition to the motion to remand, defendants assert that, in addition to the reasons previously stated, the complaint charges defendants with a failure to adequately represent Helton in good faith, thereby breaching their duty of fair representation. Such a complaint, they assert, falls within the ambit of Section 301's grant of original jurisdiction to the federal district courts.

I.

Section 301(a) reads as follows:

"Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties." Section 301(a) Labor Management Relations Act, as amended, 1959, 29 U.S.C. § 185(a).

Under this section it is clear that an individual union member may sue his employer for a breach of promise contained in a collective bargaining agreement between the employer and the employee's union, if the promise breached did confer or was intended to confer a benefit upon the individual employee.¹ And, Section 301(a) does support a suit by an individual union member against his union that seeks to redress union interference with rights conferred upon individual employees by employer promises in the collective bargaining agreement, where it is proved that the interference by the union constituted a breach of the union's duty of fair representation regardless of whether the suit is based upon a collective bargaining agreement. However, a claim of breach of the duty of fair representation requires arbitrary, discriminatory, or bad-faith conduct on the part of the union, coupled with substantial evidence of fraud, deceitful action, or dishonest conduct. See Motor Coach Employees v. Lockridge, 403 U.S. 274, 91 S.Ct. 1909, 29 L.Ed.2d 473 (1971); Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967); Humphrey v. Moore, 375 U.S. 335, 84 S.Ct. 363, 11 L.Ed.2d 370 (1964); Smith v. Evening News Association, 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962).

The question of whether Section 301 (a) will support a suit by a union member against his union for failure of the union to honor rights conferred upon employees by union promises in the collective bargaining agreement has evidently been presented to only one federal appellate court. In Buzzard v. Lodge 1040 Int. Ass'n of Mach. & A. Wkrs., 480 F.2d 35 (9th Cir. 1973), the Court stated the following:

"While we have been unable to find any case for the proposition that § 301 will support a suit by a union member against his union for redress from union refusal to honor rights conferred on employees by Union promises in the collective bargaining agreement, we are convinced that § 301 does confer such jurisdiction. The union's duty of fair representation is equally violated when it refuses arbitrarily and in bad faith to honor its obligations, under a collective bargaining agreement, which are designed to benefit its members.

"Of course, for such a claim to succeed, there must be `substantial evidence of fraud, deceitful action, or dishonest conduct' (citing cases)." Buzzard, supra, 480 F.2d at 40.

It is clear from the above and from the cases previously cited, that the instant complaint does not allege any breach on the part of the union of its duty of fair representation. The complaint only alleges a negligent failure to perform a duty as promised under the contract. There are no allegations of any arbitrary, discriminatory or bad faith actions on the part of the union or any of its agents. There are no allegations of refusal by the Union to honor rights conferred upon employees by union promises in the collective bargaining agreement. Hence, defendants' contention that this complaint alleges a breach of the union's duty of fair representation, and thereby confers upon this Court original jurisdiction under Section 301, is without merit and cannot be sustained. Removal accordingly cannot be predicated upon that basis.

II.

The question then remaining is whether the complaint herein can be categorized as a "suit...